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that one executor is not liable for the acts of his coexecutor where he remains passive does not apply where the one claiming non-liability had reason to suspect that his coexecutor was wasting the assets of the estate.64 Where one executor knows that his coexecutor has assets in his hands which had not been paid over as directed by the will, and knows that such coexecutor is using the funds of the estate in his own business, and who unites with his coexecutor in resisting a suit to get the funds out of the hands of such coexecutor, he is guilty of great negligence in the discharge of his duty so as to render him equally liable.65

One executor who negligently allows a co-executor to receive and waste assets of the estate and who could have prevented such waste by the exercise of proper care, is equally guilty of wrongdoing and is liable therefor to the beneficiaries. If one executor remains passive, knowing

part in the transaction and had no personal knowledge of the fraud.-Heath v. Allin, 1 A. K. Marsh (8 Ky.) 442.

Where one never had possession of certain moneys, but which had always been in the hands of his associate, mere passiveness on the part of the former in allowing the moneys to remain in his associate's hands is not in itself such a concurrence in the waste or misappropriation by the associate as to render him liable.-Worth v. M'Aden, 21 N. C.

executor had

199.

64 Cocks v. Haviland, 124 N. Y. 426, 26 N. E. 976.

65 Grundy v. Drye, 104 Ky. 825, 48 S. W. 155, 49 S. W. 469.

66 Williams v. Nixon, 2 Beav. 472; Dover v. Denne, 3 Ont. L. Rep. 664; Hewlett v. Beede, 2 Cal. App. 561, 83 Pac. 1086; Osborn's Estate, 87 Cal. 1, 11 L. R. A. 264, 25 Pac. 157; Whiddon v. Williams, 98 Ga. 310, 24 S. E. 437; Ramsey's Estate, (N. J. Eq.) 66 Atl. 410; Clark v. Clark, 8 Paige Ch. (N. Y.) 152, 35 Am. Dec. 676; In re Adams, 51 App. Div. 619, 64 N. Y. Supp. 591; Matter of Hunt, 38 Misc. Rep. 613, 78 N. Y. Supp. 105; Adair v. Brimmer, 74 N. Y. 539; Worth v. M'Aden, 21 N. C. 199; In re Bickley, 13 Pa. Dist. Rep. 323.

his coexecutor is wasting the assets of the estate, he subjects himself to liability because of his negligence."7

If an executor assents to a certain course of conduct by his coexecutor, he is, at least in a suit by the beneficiaries or creditors, chargeable equally with the active executor.68 Where it can be shown that one executor actually concurred in the action of his coexecutor, or with adequate knowledge of it is proven to have assented to such action, or by his passiveness is deemed to have acquiesced, he is chargeable with the consequences; and if he is also a beneficiary he is estopped to deny it."9

§ 1527. The Same Subject: As to Investments.

69

Where the will of a testator directs the investment of moneys for a particular purpose, all of the executors named in the will who qualify for the office are liable for the duty thus imposed. To permit the money to be collected by one executor and to be retained by him for an unreasonable length of time instead of having it invested as the will directs, imposes a liability upon all of the executors. If one executor through his negligence allows a coexecutor to make improper investments which result in loss to the estate, the former is equally liable with the latter." If, however, one executor has never received any

67 Bermingham v. Wilcox, 120 Cal. 467, 52 Pac. 822; Whiddon v. Williams, 98 Ga. 310, 24 S. E. 437; Insley v. Shire, 54 Kan. 793, 45 Am. St. Rep. 308, 39 Pac. 713; Fonte v. Horton, 36 Miss. 350; Duncan v. Davison, 40 N. J. Eq. 535, 5 Atl. 93; Croft v. Williams, 88 N. Y. 384; Wilmerding v. McKesson, 103 N. Y. 329, 8 N. E. 665.

68 In re Peck's Estate, 31 App. Div. 407, 52 N. Y. Supp. 1028; 8. C., 161 N. Y. 655, 57 N. E. 1119; In re Irvine's Estate, 203 Pa. St. 602, 603, 53 Atl. 502.

69 In re Niles, 113 N, Y. 547, 21 N. E. 687.

70 Grundy v. Drye, 104 Ky. 825, 48 S. W. 155, 49 S. W. 469.

71 Bermingham v. Wilcox, 120 Cal. 467, 52 Pac. 822. See, also,

of the funds of the estate nor been consulted in respect to its management, he is not liable for a loan made by his coexecutor.72 And if the funds of the estate are lawfully received by one of the executors and there is nothing to excite suspicion as to his integrity and responsibility nor to create a belief that the funds have been improperly invested, or were unlawfully allowed to remain uninvested, the executor who does not control the funds is not liable for the wrong of the other.78

§1528. Effect of Insolvency of Coexecutor.

The mere fact of the insolvency of one of several executors who has possession of assets of the estate, does not render his coexecutors liable for his devastavit, the assets never having been under the control of his coexecutors.74 But if one executor, having knowledge of the insolvency of his coexecutor, permits the latter to retain control and custody of funds of the estate and thus allows their wrongful use, the former is liable for the wrong of the latter.75 And where one executor has taken funds of the estate, and upon being requested to tell how he invested them refused to do so, and the executor took no action to compel an accounting, the latter was held liable for the wrongful use of the funds by the former who was insolvent." 76

Matter of Niles, 113 N. Y. 547, 21 N. E. 687; In re Peck's Estate, 31 App. Div. 407, 52 N. Y. Supp. 1028.

72 Cocks v. Barlow, 5 Redf. Surr. (N. Y.) 406.

73 Wilmerding v. McKesson, 103 N. Y. 329, 8 N. E. 665. III Com. on Wills-33

74 Clarke v. Cotton, 17 N. C. 51. See, also, Churchill v. Hobson, 1 P. Wms. 241; Appeal of Brown, 1 Dall. (Pa.) 311, 1 L. Ed. 152.

75 In re Osborn's Estate, 87 Cal. 1, 11 L. R. A. 264, 25 Pac. 157. 76 Smith v. Pettigrew, 34 N. J. Eq. 216.

§ 1529. Effect of Joint or Separate Inventories, Receipts or Accounts.

The fact that coexecutors file a joint inventory of the estate," or file a joint account,78 raises the presumption that the property is or had been in their joint possession, but, according to the weight of authority and the better ruling, such fact does not estop one of the executors from proving that he has not been guilty of negligence or wrongdoing, and is therefore not liable for devastavit committed by his coexecutor. The effect of some decisions, however, is that coexecutors, by filing a joint account, assume a joint liability." But while it may be an admission of joint liability for the balance found due, it does not follow that such liability has thereby become fixed and can not be altered by subsequent circumstances.80 The better rule is that even the decree of the probate court settling and allowing a joint account of coexecutors is not conclusive upon them so as to make them jointly liable; but either may show which executor received the assets, so as to render him individually liable therefor.81

77 Hall v. Carter, 8 Ga. 388, 407; Hilton v. Briggs, 54 Mich. 265, 20 N. W. 47; Cheever v. Ellis, 144 Mich. 477, 11 L. R. A. (N. S.) 296, 108 N. W. 390; Weyman v. Thompson, 52 N. J. Eq. 263, 29 Atl. 685, 30 Atl. 249; Ochiltree v. Wright, 21 N. C. 336.

78 Conner v. McIlvaine, 4 Del. Ch. 30; Cheever v. Ellis, 144 Mich. 477, 11 L. R. A. (N. S.) 296, 108 N. W. 390; Gaultney V. Nolan, 33 Miss. 569; Tehan v. Maloy, 45 N. J. Eq. 68, 16 Atl.

686; Weyman v. Thompson, 52 N. J. Eq. 263, 29 Atl. 685, 30 Atl. 249; White v. Bullock, 20 Barb. (N. Y.) 91; Clarke v. Jenkins, 3 Rich. Eq. (S. C.) 318.

79 Reber v. Gundy, 13 Fed. 53; Hinson v. Williamson, 74 Ala. 180; Hengst's Appeal, 24 Pa. 413. 80 Young's Appeal, 99 Pa. 74. 81 Weyman V. Thompson, 52 N. J. Eq. 263, 29 Atl. 685, 30 Atl. 249, which reverses 50 N. J. Eq. 8, 25 Atl. 205. (This case changes the rule formerly prevalent in New Jersey.)

But where the inventory, receipts, or accounts are joint, they indicate joint possession and are prima facie evidence of joint liability.82 A joint receipt is prima facie evidence that the parties signing the receipt received the money; and in such a case, in order to escape liability, it is necessary for the executor to show that the receipt was signed merely as a matter of form and that he never had control of the funds.88 And on the other hand, the mere fact that the executors file separate accounts does not relieve either of them for devastavit by the other with which he is in fact also chargeable.84 And an executor is bound to take notice of an account rendered to the court by his associate, and he is chargeable with the knowledge of any misapplication of funds disclosed in the account.85

§1530. Joint Bond and Joint Liability: Contribution.

One executor may become jointly liable with a coexecutor for devastavit by the latter in two ways: first, by contributing to the wrong of the latter, and, second, by having given a joint bond conditioned for the faithful performance of duties. Where executors are equally guilty of

82 Conner v. McIlvaine, 4 Del. Ch. 30; McKim v. Aulbach, 130 Mass. 481, 39 Am. Rep. 470; Effinger v. Richards, 35 Miss. 540; Glacius v. Fogel, 88 N. Y. 434; Wilson's Appeal, 115 Pa. St. 95, 103, 9 Atl. 473.

83 Joy v. Campbell, 1 Sch. & Lef. 328, 341; McKim v. Aulbach, 130 Mass. 481, 39 Am. Rep. 470; Monell v. Monell, 5 Johns. Ch. (N. Y.) 283; Ochiltree v. Wright, 21 N. C. 336.

A deed executed jointly by the

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